B-174705, FEB 11, 1972

B-174705: Feb 11, 1972

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SPENCER FOR THE DIFFERENCE IN PAY INCIDENT TO AN ALLEGEDLY NULL AND VOID REDUCTION IN RANK SUFFERED WHILE CLAIMANT WAS SERVING AS A MEMBER OF THE ARMY. THE LETTER OF THE ADJUTANT GENERAL FAILS TO STATE THE BASIS UPON WHICH IT WAS DETERMINED THAT THE ORDER WAS NULL AND VOID. SINCE AN ENLISTED MAN IS ENTITLED ONLY TO THE PAY OF THE GRADE HELD BY HIM. THE PRIOR DENIAL OF THE CLAIM IS SUSTAINED. SPENCER: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 19. REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR THE DIFFERENCE IN PAY BETWEEN THE GRADE OF TECHNICAL SERGEANT AND THE AMOUNT YOU WERE PAID AS PRIVATE. REDUCING YOU FROM THE GRADE OF TECHNICAL SERGEANT TO PRIVATE WAS NULL AND VOID AND WITHOUT LEGAL EFFECT.

B-174705, FEB 11, 1972

MILITARY PERSONNEL - REIMBURSEMENT - REDUCTION IN RANK DECISION DENYING THE CLAIM OF ELMER B. SPENCER FOR THE DIFFERENCE IN PAY INCIDENT TO AN ALLEGEDLY NULL AND VOID REDUCTION IN RANK SUFFERED WHILE CLAIMANT WAS SERVING AS A MEMBER OF THE ARMY. THE LETTER OF THE ADJUTANT GENERAL FAILS TO STATE THE BASIS UPON WHICH IT WAS DETERMINED THAT THE ORDER WAS NULL AND VOID. CONSEQUENTLY, THE COMP. GEN. MUST CONSIDER THE WRITTEN ORDER AS VALID AUTHORIZATION FOR REDUCTION IN RANK. SINCE AN ENLISTED MAN IS ENTITLED ONLY TO THE PAY OF THE GRADE HELD BY HIM, 15 COMP. GEN. 935, THE PRIOR DENIAL OF THE CLAIM IS SUSTAINED.

TO MR. ELMER B. SPENCER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 19, 1971, ADDRESSED TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR THE DIFFERENCE IN PAY BETWEEN THE GRADE OF TECHNICAL SERGEANT AND THE AMOUNT YOU WERE PAID AS PRIVATE, PRIVATE FIRST CLASS, AND CORPORAL FROM JULY 29, 1944, TO NOVEMBER 12, 1945, THE DATE OF YOUR DISCHARGE FROM THE ARMY.

OUR FILES SHOW THAT BY LETTER DATED JULY 3, 1947, YOU FILED A CLAIM FOR THE DIFFERENCE IN PAY WITH OUR OFFICE. AT THAT TIME, YOU FORWARDED SEVERAL LETTERS IN SUPPORT OF YOUR CLAIM, WHICH INCLUDED A COPY OF LETTER FROM THE OFFICE OF THE ADJUTANT GENERAL OF THE ARMY DATED SEPTEMBER 18, 1946, WHICH ADVISED YOU OF AN ADMINISTRATIVE DETERMINATION THAT SPECIAL ORDER 96, HEADQUARTERS, 2D CHEMICAL BATTALION, DATED JULY 29, 1944, REDUCING YOU FROM THE GRADE OF TECHNICAL SERGEANT TO PRIVATE WAS NULL AND VOID AND WITHOUT LEGAL EFFECT. IT ADVISED YOU FURTHER THAT YOU STILL RETAINED THE GRADE OF TECHNICAL SERGEANT FROM JULY 29, 1944, TO NOVEMBER 12, 1945, DATE OF SEPARATION FROM THE SERVICE.

YOU ALSO FORWARDED A LETTER FROM THE ARMY FINANCE CENTER, OFFICE OF THE CHIEF OF FINANCE, DATED MAY 16, 1947. THE LETTER ADVISED YOU THAT YOUR CLAIM FOR DIFFERENCE IN PAY BETWEEN TECHNICAL SERGEANT AND PRIVATE FROM JULY 29, 1944, THROUGH APRIL 30, 1945, AND PRIVATE FIRST CLASS FROM MAY 1 THROUGH NOVEMBER 12, 1945, WAS NOT VALID. IN SUBSTANTIATION, THE LETTER REFERRED TO A DECISION OF OUR OFFICE, B 26673, DATED MARCH 24, 1943, WHICH HELD IN PERTINENT PART THAT EVEN THOUGH A REDUCTION OF A NONCOMMISSIONED OFFICER WAS IRREGULAR UNDER ARMY REGULATIONS, THE SUBSEQUENT APPOINTMENT OF A REPLACEMENT ON THE RECOMMENDATION OF THE COMPANY COMMANDER OPERATES TO EFFECT THE REDUCTION FROM DATE OF THE LATTER'S PROMOTION.

IN YOUR LETTER OF JULY 3, 1947, YOU SAID THAT AT THE TIME OF YOUR REDUCTION YOU WERE HOSPITALIZED AND ASSIGNED TO A DETACHMENT OF PATIENTS FOR ABOUT 13 MONTHS. THEREFORE, YOU EXPRESSED THE VIEW THAT NO ONE COULD HAVE BEEN APPOINTED TO YOUR PLACE ON THE RECOMMENDATION OF THE COMPANY COMMANDER DURING THAT PERIOD.

BY LETTER DATED NOVEMBER 26, 1947, YOUR CLAIM WAS DENIED BY OUR CLAIMS DIVISION FOR THE REASON THAT APPLICABLE REGULATIONS PROVIDE THAT AN ENLISTED MAN IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF THE GRADE HELD BY HIM, AND THAT WHEN HE HAS BEEN REDUCED IN GRADE HE MAY NOT, ON THE ISSUANCE OF SUBSEQUENT ORDERS RESCINDING THE REDUCTION IN GRADE, BE PAID THE HIGHER RATE OF PAY RETROACTIVELY TO THE DATE OF REDUCTION.

IN YOUR PRESENT LETTER, YOU CONTEND THAT THE ORDER REDUCING YOU TO PRIVATE WAS DECLARED NULL AND VOID AND YOU ENCLOSED ANOTHER COPY OF THE ADJUTANT GENERAL'S LETTER DATED SEPTEMBER 19, 1946, IN SUPPORT OF YOUR CONTENTION. YOU CONTEND FURTHER THAT WITH THE ORDER DATED JULY 29, 1944, SET ASIDE, AN ADJUSTMENT OF YOUR PAY WAS AUTHORIZED FOR THE PERIOD FROM JULY 29, 1944, THROUGH NOVEMBER 12, 1945.

THE FILE DOES NOT CONTAIN A COPY OF SPECIAL ORDER 96, HEADQUARTERS, 2D CHEMICAL BATTALION, DATED JULY 29, 1944, AND THEREFORE WE DO NOT KNOW THE BASIS FOR YOUR REDUCTION IN GRADE. HOWEVER, A TRANSCRIPT OF THE VOUCHER COVERING YOUR PAY FOR THE PERIOD FROM JUNE 1 THROUGH AUGUST 31, 1944, ON FILE IN THE CASE, CONTAINS THE NOTATION THAT YOU WERE TRANSFERRED AS PRIVATE FROM 2D CHEMICAL BATTALION TO DETACHMENT OF PATIENTS, 300TH GENERAL HOSPITAL, APO 758, ON JULY 26, 1944, AND THAT YOU WERE REDUCED TO THE GRADE OF PRIVATE FROM TECHNICAL SERGEANT BY VERBAL ORDERS OF YOUR COMMANDING OFFICER ON JULY 26, 1944, WHICH ORDERS WERE CONFIRMED BY SPECIAL ORDER 96, DATED JULY 29, 1944, ISSUED BY HEADQUARTERS, 2D CHEMICAL BATTALION.

ALSO, A TRANSCRIPT OF YOUR SERVICE RECORD SHOWS THAT YOU WERE ASSIGNED TO HEADQUARTERS AND HEADQUARTERS COMPANY, 2D CHEMICAL BATTALION AS A TECHNICAL SERGEANT ON JUNE 27, 1944, AND WERE REASSIGNED AS PRIVATE TO DETACHMENT OF PATIENTS, 300TH GENERAL HOSPITAL, REMAINING THERE UNTIL YOU RETURNED TO THE UNITED STATES, ARRIVING OCTOBER 22, 1944. YOU THEN ENTERED A HOSPITAL IN STAUNTON, VIRGINIA, STAYED THERE UNTIL YOU WERE TRANSFERRED TO FORT GEORGE G. MEADE, MARYLAND, AND ON NOVEMBER 12, 1945, YOU WERE DISCHARGED AT THAT PLACE. THE TRANSCRIPTS SHOW THAT YOU WERE PROMOTED TO PRIVATE FIRST CLASS ON MAY 1, 1945, AND TO CORPORAL ON NOVEMBER 5, 1945.

ARMY REGULATIONS 615-5, DATED JUNE 30, 1943, IN EFFECT DURING THE PERIOD INVOLVED, PERTAINED TO THE APPOINTMENT AND REDUCTION OF NONCOMMISSIONED OFFICERS AND PRIVATES, FIRST CLASS. PARAGRAPH 13C(2) THEREOF PROVIDED IN PERTINENT PART THAT OTHER THAN BY COURT-MARTIAL, OR BY ACTION OF THE SECRETARY WHO MAY TERMINATE ANY APPOINTMENT AT WILL, THE AUTHORITY COMPETENT TO APPOINT MAY TERMINATE AN APPOINTMENT IN GRADE OTHER THAN THAT OF PRIVATE FIRST CLASS, INCLUDING TECHNICIAN GRADES, FOR MISCONDUCT OR INEFFICIENCY AS PROVIDED IN PARAGRAPH 15 THEREOF.

PARAGRAPH 15A PROVIDED THAT THE MISCONDUCT OR INEFFICIENCY BELIEVED TO MAKE TERMINATION OF APPOINTMENT NECESSARY WILL BE REPORTED BY THE IMMEDIATE COMMANDING OFFICER OF THE NONCOMMISSIONED OFFICER CONCERNED, TO THE APPOINTING OFFICER, WHO WILL CAREFULLY AND EXPEDITIOUSLY EXAMINE INTO THE FACTS OF THE CASE, THROUGH A BOARD OF OFFICERS, OR BY OTHER SIMILAR MEANS IF HE SO ELECTS, TO DETERMINE THE FACTS IN CONNECTION WITH THE ALLEGED INEFFICIENCY OR MISCONDUCT AND WHETHER OR NOT THERE IS JUST CAUSE FOR THE TERMINATION OF THE APPOINTMENT. PARAGRAPH 6A OF THE REGULATION PROVIDED THAT THE APPOINTING AUTHORITY FOR NONCOMMISSIONED OFFICERS OF A DETACHED OR SEPARATE BATTALION IS THE BATTALION COMMANDER.

ON JULY 26, 1944, YOU WERE STILL A MEMBER OF THE HEADQUARTERS AND HEADQUARTERS COMPANY, 2D CHEMICAL BATTALION, WHEN YOU WERE REDUCED BY VERBAL ORDERS OF THAT DAY BY YOUR COMMANDING OFFICER, WHICH ORDERS WERE CONFIRMED BY A WRITTEN ORDER DATED JULY 29, 1944, BY YOUR BATTALION COMMANDER. THE RECORD SHOWS FURTHER THAT AT THE TIME YOU WERE TRANSFERRED ON JULY 26, 1944, TO THE 300TH GENERAL HOSPITAL, THE TRANSFER WAS MADE IN THE GRADE OF PRIVATE.

WE HAVE RECOGNIZED THAT IN INSTANCES WHEN A MEMBER IS NO LONGER UNDER THE JURISDICTION OF THE OFFICER WHO ISSUED THE REDUCTION IN GRADE ORDERS, SUCH ORDERS ARE NULL AND VOID AB INITIO. THERE IS NOTHING IN THE RECORD, HOWEVER, TO SHOW THAT THE COMMANDING OFFICER OF THE BATTALION DID NOT EXERCISE MILITARY CONTROL OVER YOU UNTIL THE TIME YOU LEFT THAT COMMAND FOR TRANSFER TO THE HOSPITAL AND, THEREFORE, AS FAR AS THE RECORD SHOWS, SUCH OFFICER WAS NOT WITHOUT AUTHORITY TO ISSUE THE VERBAL REDUCTION ORDER OF JULY 26, 1944. THE CONFIRMING ORDER RELATED BACK TO THE VERBAL ORDER AND WAS NOT INVALID BECAUSE OF THE FACT THAT YOU THEN HAD BEEN TRANSFERRED.

THE LETTER OF THE ADJUTANT GENERAL DATED SEPTEMBER 19, 1946, DOES NOT STATE A BASIS UPON WHICH IT WAS DETERMINED THAT THE ORDER DATED JULY 29, 1944, WAS NULL AND VOID AND WITHOUT LEGAL EFFECT. ACCORDINGLY, IN THE ABSENCE OF OFFICIAL INFORMATION TO THAT EFFECT, WE MUST CONSIDER THAT THE ORDER OF JULY 29, 1944, CONFIRMING VERBAL ORDERS OF JULY 26, 1944, WAS VALID AND HAD THE EFFECT OF REDUCING YOUR GRADE FROM TECHNICAL SERGEANT TO PRIVATE EFFECTIVE JULY 26, 1944. AN ENLISTED MEMBER IS ENTITLED ONLY TO THE PAY OF THE GRADE HELD BY HIM. 15 COMP. GEN. 935.

YOUR CLAIM WAS DENIED BY OUR CLAIMS DIVISION BECAUSE OF THE FACT THAT, AS FAR AS THE RECORD SHOWS, YOU WERE LEGALLY REDUCED IN GRADE ON JULY 26, 1944, AND THAT AT NO TIME DURING THE PERIOD FROM DATE OF REDUCTION TO DATE OF DISCHARGE DID YOU PERFORM THE DUTIES OF A TECHNICAL SERGEANT, RATHER THAN BECAUSE OF THE FACT THAT ANOTHER MEMBER MAY HAVE BEEN APPOINTED AS TECHNICAL SERGEANT IN YOUR PLACE.

ACCORDINGLY, YOU ARE NOT ENTITLED TO AN ADJUSTMENT IN PAY AS CLAIMED AND THE DENIAL OF YOUR CLAIM BY LETTER DATED NOVEMBER 26, 1947, A COPY OF WHICH IS ENCLOSED, IS SUSTAINED.